NOW with Bill Moyers

Troubled Waters. 12.20.02

BRANCACCIO: As the Clean Water Act marks its 30th anniversary, the landmark environmental legislation is being threatened as never before, under attack from courts, from regulators and from property owners.

STONER: This affects the water you drink. It affects the fish you eat. This affects the, the rivers and the lakes that you swim in, that you boat in…

BRANCACCIO: Congress passed the Clean Water Act in 1972 to stop the nearly unchecked dumping of pollution into our waterways...

At a time when two-thirds of the country's lakes, rivers and coastal waters had become unsafe for fishing or swimming.

Untreated sewage was being dumped into open water.

The Hudson River and Lake Erie were dying.

And Cleveland's Cuyahoga River, the poster child for polluted water, was so full of industrial toxins it sometimes burst into flames.

While the law has made dramatic progress in 30 years, water pollution is still a big problem in the U.S. An estimated 39% of the rivers, 45% of the lakes, and 51% of the estuaries monitored are contaminated.

STONER: We will pay to clean up this pollution through sacrificing public health, sacrificing wildlife.

BRANCACCIO: Environmentalist Nancy Stoner is alarmed that instead of enforcing the law, the courts and regulators are weakening it.

Two years ago, the U.S. Supreme Court said the clean water act was being applied too broadly … an "impingement of states' power" and ruled that the law cannot be used to protect isolated wetlands.

That was a setback to those who see the critical role wetlands play in protecting our water by trapping polluted runoff, filtering and cleaning out toxins.

Dr. Joy Zedler has served on several panels of the National Academy of Science studying wetlands.

ZEDLER: We think of wetlands as supermarkets—places for food to be supplied other species. We think of them as kidneys because they filter out contaminants, sediments and nutrients. And we think of them as sponges because they soak up water flowing off the land.

BRANCACCIO: Over the last 200 years, the continental U.S. has lost more than half of its wetlands. America is becoming browner.

ZEDLER: That degree of wetland loss is truly frightening.

BRANCACCIO: The Bush administration is sending mixed messages. On the one hand, it recently announced federal matching funds to help preserve remaining wetlands.

[PRESIDENT BUSH ON TAPE]: Today we're taking important action to conserve North America's wetlands, which will help keep our water clean and help provide habitat for hundreds of species of wildlife.

BRANCACCIO: But on the other hand, Nancy Stoner says, the administration has already signaled it will soon issue new rules that could significantly roll back clean water protection.

STONER: This is about putting polluters first.

BRANCACCIO: She fears the Bush administration will interpret the Clean Water Act in ways that favor industry and damage wetlands, small streams and tributaries.

STONER: They're making these changes through bureaucratic processes that the public doesn't understand. And that the public can't participate in effectively.

The Bush administration already allows dumping of debris from mountaintop mining removal. As NOW reported earlier this year, that is burying rivers and streams in Appalachia.

Environmentalists say the administration's actions in all this could undo much of the progress of the last 30 years.

And there's another threat coming at the Clean Water Act—this time from property owners.

Take this tiny plot of land just south of Sacramento, California.

The fight here centers on just 2 acres, but the case made it all the way to the U.S. Supreme Court last week.

Owner and developer of the Borden Ranch, Angelo Tsakopoulos, wanted to grow orchards and vineyards.

BRANCACCIO: When you bought this, this was what…

TSAKOPOULOS: It was just like that. Yeah. Grazing land, just like at the whole thing. And the idea is in this particular soil you can grow good apples and good wine grapes.

BRANCACCIO: Before he could plant, he needed to cut through a dense underground layer of clay beneath his soil that prevents water from reaching the deep-roots of his crop and that's where the trouble started.

Parts of his property are criss-crossed by natural drainage ditches called swales, where the underground clay pan keeps the water in place to help form seasonal basins.

These are considered wetlands and are protected by the Clean Water Act.

Mr. Tsakopoulos used a plowing technique known as deep ripping where a bulldozer drags a 4 to 7 foot metal spike—up to the height of a tall man—down through the ground.

BRANCACCIO: There's normal plowing that isn't so deep, and then there's this thing called deep ripping, where they go down five, six, seven feet. And that can change the wetlands. It can change the nature of the way water flows through your property.

TSAKOPOULOS: Of course it does. All plowing changes the hydrology of the soil. And that's why we plow. So that the water will get down to the roots of what we plant. Is the government gonna tell us whether we set our plow 12 inches, 14, 16, 18? Or are we going to allow the farmer to do that? I think the farmers should decide how to plow their land.

BRANCACCIO: Mr. Tsakopoulos says he tried not to damage the wetland swales. But the government said he did a violation of the Clean Water Act.

TSAKOPOULOS: You see, we are not trying to plant here. It's not important. We would avoid this swale if we could. But when you plow the upland here, you gotta get the tractor on the other side.


TSAKOPOULOS: And how you gonna get there? You gotta go through it. And if you were to cross it, then they want you to get a permit.

BRANCACCIO: But he never did get a permit and a federal judge found Tsakopoulos had violated the law when he deep-ripped through the clay pan underneath 29 protected swales, allowing the water to seep out.

ZEDLER: It's like opening a wound in the soil, and it allows the wetland to bleed. You lose the water from the wetland; you lose nutrients; you lose other water chemistry; it's a wounded wetland that is not necessarily self-healing.

BRANCACCIO: Mr. Tsakopoulos believes the Clean Water Act exempts normal farming activities. By requiring a permit, he says, the government overstepped its authority.

ANGELO: Here is one crossing where the plow went through here. And that is a violation—$25,000.

BRANCACCIO: For this plow…

ANGELO: Penalty for…

BRANCACCIO: …right there.

ANGELO: …each time the plow crossed this—what is it?—the foot and a half in some places.

ANGELO: Yeah. About a foot wide, maybe a foot and a half wide, yet the penalty is $25,000 for crossing it.

BRANCACCIO: But no matter how small it looks, the federal judge found significant damage had occurred underneath the surface—348 deep-ripping violations in all—and ordered Mr. Tsakopoulos to pay a $500,000 fine.

BRANCACCIO: Do you worry that ultimately wetlands could be degraded, that you could have unintended consequences of ultimately hurting wetlands in America?

TSAKOPOULOS: Farmers are not gonna farm in different ways. They're gonna plow the same way they been plowing. This kind of regulation, this kind of scrutiny, is not a good thing for the farmers or for the country.

Wetlands are incredibly important, and even the deep ripping of a small swale in a place like California has a measurable effect!

The services that wetlands perform aren't just useful to environmentalists somewhere across the globe! They are useful to everyone, and--those of us who own land are incredibly privileged. Along with that privilege comes a responsibility to care for the land.

BRANCACCIO: That's why, the government argues, even the small ditches on the Borden Ranch have to be protected.

BRANCACCIO: Can the farmer really understand how the depth of his plowing here might affect a stream somewhere else? Maybe it's the government to figure out the big picture there.

TSAKOPOULOS: The farmers are the best caretakers of our ecosystem.

We live here. I want my kids to drink clean water, and breathe clean air. But that we must not interfere with farmers growing food for America. That's very important also.

VICKI LEE: Well, I'm not sure that he is a farmer.

BRANCACCIO: Vicki Lee is a Sacramento area resident and environmental activist.

LEE: I doubt you could find four people in northern California that would agree that he's a farmer.

BRANCACCIO: They'd say developer.

LEE: They'd say developer immediately. But he probably doesn't have the expertise that the scientists have that work for the U.S. EPA or the Army Corps of Engineers or the folks who have responsibility for protecting the public trust, which is the natural resources of this country.

BRANCACCIO: But you and I both know farmers who are probably pretty good…

LEE: Yes.

BRANCACCIO: …at making decisions about water use and land use.

LEE: Yes.

BRANCACCIO: For the good of all?

LEE: That's right. There are lots of farmers, more and more, that are doing wildlife-friendly farming. They actually care about nature and their land and the earth and that's what they're about.

They are stewards of the land. This guy is not a steward of the land. He's a developer, speculator, developer. And nothing more. I mean I could tell you I was an actress and it would just be a lie.

BRANCACCIO: But farmers as well as developers have a big stake in this.

You're going to create huge headaches for farmers. It's going to ensnare them in all kinds of red tape. It's going to create big problems.

BRANCACCIO: Don Parrish is with the American Farm Bureau Federation. His brief to the Supreme Court argued against government regulation.

PARRISH: This could seriously put us on a slippery slope for having government bureaucrats define what farming practices should be, and if that happens, we're going to lose our competitiveness in world markets.

BRANCACCIO: That's a scare tactic, say environmentalists. While for farmers, the key to this is what exactly qualifies as a wetland?

PARRISH: Well I would argue that a lot of these wetlands, you're probably not going to recognize as wetlands! These are going to be areas that are dry the majority of the year!

And, and those marginal areas are going to be very hard for farmers to be out there determining every time they pull a plow out of their barn as to where can I plow and where can I not plow?

BRANCACCIO: Maybe so. There are shades of grey in defining a wetland. But even though the swales on the Borden Ranch are dry much of the year, Dr. Zedler says they still play a crucial role when it rains.

ZEDLER: California is not only a, a dry end of our wetland continuum it's also a place where most of the wetlands have already been destroyed by exactly the techniques that are being called "deep ripping" and "plowing" in this case.

BRANCACCIO: Historically, most wetlands have disappeared because they were converted to farmland.

The corn belt states have seen most of their wetlands destroyed:
Illinois - 85% gone, Indiana - 87% gone, Iowa - 89% gone, Ohio - 90% gone.

And in California, home to the Borden Ranch, an estimated 91% of the state's original wetlands have disappeared.

One major reason? The tendency to look at a wetland and see wasteland.

PARRISH: Over the years farmers thought they were contributing to the better public good by producing food and fiber, and they were given a lot of incentives to convert those wetlands. I grant you, norms change. People's values change. But a lot of that land was converted for good purposes to feed people in this country.

ZEDLER: Even the responsibility to feed people can be thought of in the short and the long term and if I damage the land in the process of feeding the people in 2002, and I make that land so that it is incapable of feeding the people in 2020, then I haven't been responsible.

BRANCACCIO: On Monday, Mr. Tsakopoulos lost his case when the Supreme Court announced it would not issue its own opinion. The court had split 4 to 4, because the ninth justice, Anthony Kennedy, a friend of Mr. Tsakopoulos, recused himself.

The split decision left the lower court's ruling in place and does not resolve the fundamental issue of the government's authority to stop farmers from altering wetlands on their own property.

Environmentalists won this round. But they worry their victory may only last until the next time this divided court acts on a clean water case.

This ongoing battle continues to take a toll.

ZEDLER: What we are able to experience in our lifetime is such a brief blip on the geological record - but it - what we do to the land leaves a legacy forever.

BRANCACCIO: Even as courts debate the law, regulations backed by industry are put into place, and developers and farmers look for loopholes, the country is losing more than 58,000 acres of wetlands every year.